Cole v. Permanente Med. Grp., Inc.

ROSEMARIE COLE, Plaintiff,

v. THE PERMANENTE MEDICAL GROUP, INC., a California corporation;KAISER PERMANENTE MEDICAL GROUP, INC., a California corporation, Defendant.

Case No.: C 11-05378 PSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: April 17, 2013

ORDER GRANTING DEFENDANT'S

MOTION FOR SUMMARY

JUDGMENT

(Re: Docket No. 41)

Defendant The Permanente Medical Group, Inc. ("TPMG"), a California corporation, moves for summary judgment pursuant to Fed. R. Civ. P. 56(a) on the employment discrimination claims brought by Plaintiff Rosemarie Cole ("Cole").¹ Cole opposes the motion.² Having considered the parties' papers, the court GRANTS TPMG's motion.

I. BACKGROUND

This action arises from Cole's termination as an Advice Nurse in TPMG's Call Center. Cole claims that her termination was the result of TPMG's intent to interfere with her receipt of additional pension benefits under the Employee Retirement Income Security Act ("ERISA").³ TPMG maintains that Cole's firing was because Cole violated company confidentiality policies on multiple occasions.⁴ The court begins by recounting Cole's undisputed employment history at TPMG and the undisputed events leading up to her termination.

A. Cole's Employment at TPMG

Since June 3, 1996, Plaintiff was employed by TPMG as an Advice Nurse in TPMG's call center.⁵ Advice Nurses respond to calls that TPMG's members make to the phone number (the "Dedicated Line") listed in membership agreements, information materials, and the website.⁶ When calls come in on this Dedicated Line, Advice Nurses access members' electronically stored medical information in a program called CIPS, which requires the nurse's identification number, confidential password, and a member's unique member identification number.⁷ Authorization to use the computers to access information is only for the purpose of responding to calls,⁸ and all calls on the Dedicated Line are recorded and preserved.⁹

TPMG has two written policies, which are distributed to Advice Nurses on an annual basis.¹⁰ The Obligations Regarding Confidentiality Policy Section V.D.2 states:

Access to medical information is permitted only as needed to provide medical care to members and patients, or as necessary in the regular course of business . . . Covered persons . . . may not retrieve . . . medical information about another individual without the individual's written authorization.¹¹

The Electronic Asset Usage policy similarly states that employees may not use their computer terminals to access patient medical information "except as authorized in accordance with established processes and only for business or medical care reasons."¹² There was also an informational bulletin that was distributed to Cole and other advice nurses in October 2009, which stated: "Your relatives can give you permission to view their records, but it must be in writing and would only be permitted by going to the facility where you get care and completing an authorization form."¹³ Advice nurses are required to undergo annual training that consists of multiple interactive screens with answers to a series of questions.¹⁴ One of these screen shots includes an example and provides the correct answer, "It is not permissible to share [medical] information because the cousin has not given written or oral permission to do so."¹⁵ Cole completed this training in June 2009 and again in August 2010.¹⁶ Whenever an Advice Nurse logs into the CIPS program, a notice pops up stating that medical information is confidential and restricted to situations in which it is necessary to perform job responsibilities.¹⁷

As an Advice Nurse, Cole is a beneficiary under the Employee Pension Plan established and maintained by TPMG.¹⁸ Her pension rights under the retirement plan vested at her fifth service year, and she is entitled to higher pension payments upon reaching ten and fifteen years ofservice.¹⁹ Cole stated that she planned to retire June 3, 2012 when she would have attained fifteen years of service and qualified to receive retiree health insurance.²⁰

In September, 2010 Cole's husband, Larry Nelson ("Nelson"), registered a complaint to TPMG's Member Services that accused Cole of improperly gaining access to his information.²¹ Nelson is a non-practicing attorney who is a member/patient of TPMG with rights to access his medical records.²² Cole allegedly obtained a Temporary Restraining Order against Mr. Nelson on or about April 23, 2010 and finalized their divorce in November, 2010.²³ Following Nelson's complaint, TPMG's Senior Operation RN Manager ("RN Manager") asked the administrative staff to conduct an investigation, which revealed that Cole had accessed CIPS of her husband on twelve different dates from May to September 2010 and made two separate entries into CIPS of a former member, W.M.²⁴ None of these entries were associated with incoming calls on the Dedicated Line.²⁵

The RN Manager met with Cole, her union stewards, and a labor relations consultant on October 25, 2010 and November 11, 2010 to discuss the entries.²⁶ Cole explained that she made the entries into her husband's information when he requested she do so on her personal cell phone.²⁷ She claimed he was verbally abusive and that she had acquiesced in order to "keep thepeace."²⁸ She did not believe that she had done anything wrong, because she did not recall any policies against this type of action.²⁹ As to the entry into W.M.'s records, Cole first stated that another nurse must have accessed her computer while she was on break and, contrary to policy, had failed to lock the computer.³⁰ When TPMG showed her records that the W.M entries were made when she was not on break, she then surmised that she may have "fat-fingered" W.M.'s number when intending to type a different member number.³¹ TPMG did not accept this explanation, because two separate entries were made that were separated by forty-five minutes and during each of the entries, two or more screens were accessed. Furthermore, the member ID numbers of members who made incoming calls just before and after the entries at issue were significantly different from W.M.'s member number. The RN Manager, feeling that Cole committed a knowing violation of company policy and that she had no credible explanation for the entries into W.M.'s records, terminated Cole's employment on November 18, 2010.³² Up until that time, Cole had never been subject to any disciplinary actions.³³

After the California Nurses Association ("CNA") filed its grievance over Cole's termination, the CNA representative, Debra Grabelle, asked for information concerning other nurses who had not been terminated for committing medical privacy violations.³⁴ TPMG supplied a list of nurses that were not fired for similar confidentiality violations, which provides the date of the discipline, the location where the nurse was employed, and the form of discipline that wasreceived.³⁵ It does not provide any individual information regarding the nurses, such as the date at which their pensions would have vested.³⁶ The CNA declined to take the matter to arbitration.³⁷

B. Administrative Proceedings

After being discharged, Cole filed for unemployment insurance, which was granted and then appealed by TPMG.³⁸ A hearing was held, where both testimonial and documentary evidence were admitted.³⁹ The California Unemployment Insurance Appeals Board ("Appeals Board") found that Cole had accessed her husband's records at his request.⁴⁰ It also found that she had accessed the former member's records as a result of error when trying to access another member's records, or the files were accessed by another employee when claimant mistakenly left her computer station unlocked.⁴¹ The Appeals Board held that TPMG had not proven misconduct and that Cole was not disqualified from benefits.⁴²

Cole then filed suit in this court alleging that TPMG had violated Section 510 of ERISA.

II. LEGAL STANDARDS

Summary judgment is proper if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."⁴³ The moving party bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absenceof a triable issue of material fact.⁴⁴ If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial.⁴⁵ A genuine issue for trial exists if there is sufficient evidence for a reasonable jury, viewing the evidence in the light most favorable to the non-moving party, to return a verdict for the nonmoving party. ⁴⁶ If the nonmoving party fails to make the requisite showing, "the moving party is entitled to judgment as a matter of law."⁴⁷

III. DISCUSSION

A. ERISA

Cole claims that TPMG violated Section 510 of ERISA. Section 510 of ERISA provides: "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."⁴⁸ To prevail, a claimant must show that employment was terminated due to the employer's specific intent to interfere with ERISA rights.⁴⁹ In the context of summary judgment, courts must be particularly cautious where issues of intent or motivation are involved.⁵⁰ At the same time, although summary judgment is generally inappropriate in actions involving state of mind, plaintiffs are not entitled to trial simply because they assert claims to which state of mind is a material element.⁵¹ "There must be someindication that [they] can produce the requisite quantum of evidence to . . . reach the jury with a claim."⁵² Because there usually is no direct evidence of specific intent to interfere with ERISA rights, courts have held that the Burdine/McDonnell Douglas burden-shifting approach used in Title VII a...